Standing Committee A

[Mr. David Taylor in the Chair]

Gender Recognition Bill [Lords]

Schedule 1 - Gender recognition panels

Amendment proposed [this day]: No. 40, in 
schedule 1, page 14, leave out lines 11 and 12 and insert— 
 '(b) are registered medical practitioners recognised as currently practising in the field of gender dysphoria in the United Kingdom, and registered medical practitioners who have entries in the specialist register held by the General Medical Council which confers their eligibility to practise as consultant psychiatrists within the National Health Service (''medical members'').'.—[Andrew Selous.] 
 Question again proposed, That the amendment be made.

David Taylor: I remind the Committee that with this we are discussing the following amdts:
 No. 41, in 
schedule 1, page 15, leave out line 7 and insert— 
 '(b) at least two medical members including— 
 (i) a registered medical practitoner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and 
 (ii) a registered medical practitioner who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service.'. 
No. 34, in 
clause 3, page 2, leave out lines 16 to 21 and insert— 
 '(a) a report made by a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and 
 (b) a report by a registered medical practitioner who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service.'. 
No. 35, in 
clause 3, page 2, leave out lines 24 to 27 and insert— 
 '(a) a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and 
 (b) a registered medical practitioner who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service, includes details and justification of the diagnosis of the applicant's gender dysphoria.'. 
No. 36, in 
clause 27, page 12, leave out lines 15 to 17 and insert— 
 '(a) a report made by a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and
 (b) a report by a registered medical practitioner who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service.'. 
No. 37, in 
clause 27, page 12, line 20, leave out paragraph (a) and insert— 
 '(a) the reference in subsection (1) to a registered medical practitioner is to one recognised as currently practising in the field of gender dysphoria in the United Kingdom.'. 
I remind hon. Members to turn off mobile phones and that the use of electronic equipment in Committees is prohibited.

Andrew Selous: It is a pleasure to serve under your chairmanship, Mr. Taylor, as I am sure other members of the Committee will agree.
 I wish to respond briefly to the hon. Member for Birmingham, Selly Oak (Lynne Jones), who said, if I remember correctly, that Dr. Reid was held in high regard in the transsexual community. I am well aware of that fact. Sadly, however, it appears that Dr. Reid may have been guilty of fast-tracking many transsexuals into gender reassignment surgery. Indeed, one individual who went to see him stated: 
 ''Less than a month after I started living full-time as a woman, Dr. Reid recommended surgery.'' 
That balances the two sides of the matter and relates to my point about being absolutely sure that there is a proper process and proper medical advice. We may have to return to the matter on Report. However, in the light of what the Minister said, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Tim Boswell: I beg to move amendment No. 5, in
schedule 1, page 14, line 12, at end insert—
'(c) are lay persons with experience as magistrates or as members of a tribunal.'.

David Taylor: With this it will be convenient to discuss the following amdts:
 No. 6, in 
schedule 1, page 15, line 7, at end insert— 
 '(c) not fewer than three persons in all.'. 
No. 7, in 
schedule 1, page 15, line 11, leave out from 'where' to 'either'. 
No. 8, in 
schedule 1, page 15, line 14, leave out from 'Panel' to 'may'.

Tim Boswell: I am delighted that you are presiding over our affairs this afternoon, Mr. Taylor; I am sure that the sitting will be business-like. Not wholly by calculation, I seem to be taking the lead for the next five groups of amdts. I hope that we can motor on and get the necessary understanding and assurances from the Minister as to what will happen on gender recognition panels. Without exception, all the amendments are probing amendments to find out how the system will work.
 I ought to begin with a declaration of interest or, perhaps, of experience that does not appear in the conventional manner on my CV. For a short period, I was a member of the agricultural land tribunal. I was 
 appointed by the then Lord Chancellor; indeed, after the events of yesterday, I could still be appointed by a Lord Chancellor. Therefore, I had some two years' experience of tribunal work. It was interesting, not least because the tribunal typically involved a legal Chairman and two representatives, one for farmers and one for landowners. I could never remember which side had nominated me, but that never made any difference to our deliberations, which is how it should be. 
 With that experience in mind and also for the avoidance of any doubt in the Committee, even though I have declared that interest, I could not possibly be feathering my own nest because the House of Commons Disqualification Act 1975 would kick in if I were nominated as a member of a gender recognition panel, even by the Lord Chancellor. I just want to tease out from the Minister some comments on how the panels will work. I do not believe that the matter has been mentioned elsewhere. If it was, I did not completely take it on board. The Minister may have noticed that my amendment is contrary to the previous group, which was tabled by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous). If the Minister were mischievous, he would comment on that. My hon. Friend sought expert representation on the panel, and I now seek lay representation. 
 What I am after is a better understanding of how the gender recognition panel will operate. At the back of my mind is the concern that surfaced when we discussed the previous group of amendments about creating not only sufficient transparency of the panel but sufficient independence among its members to ensure that proper decisions are taken. The process should not be simply a matter of taking the word of an expert, however distinguished or authoritative, and nodding the decision through. I am sure that neither the Minister nor the transsexual community would wish that to happen; they want proper consideration of the matter. With that in mind, the first and primary purpose of amendment No. 5 and the related amendments is to suggest that there should be a lay element on panels. That has not been strongly advocated, as far as I know, by any significant group, although I did note at one stage that Press for Change was arguing that the decisions of gender recognition panels should not be over-medicalised—I think that that was the phrase that it used. I have some sympathy on that point. The issue is about the whole person and their relationship with society, and that is a proper way of looking at it. 
 What I had in mind was that the lay person might act as an intelligent outsider, who could say to the expert members of a tribunal, ''Come on, I don't believe that,'' or, ''Have you got enough evidence for that? Are you really sure?'' They would do the kind of things that non-executive directors do on company boards, or that members of a tribunal can do even when they do not have specific expertise. 
 Amendment No. 6, and its counterparts, suggest that a gender recognition panel should not consist of fewer than three people. The implication of the provisions relating to procedure, and in particular the opening line of paragraph 6, is that there could be a panel of one member. The reference is to: 
 ''Where a Panel consists of more than one member''. 
The Minister owes it to the Committee to explain roughly what he normally expects to happen, roughly what the number of members on the panel should be, and how it will work in practice. I realise that this is not a tribunal; it is a panel that will quite explicitly and properly meet in private. Partly because of that, I am anxious that there is at least some transparency in the decision-making process. I do not mean a public rehearsal. I am talking about a responsible person coming in from outside at least to ask questions. 
 The purpose of my lead amendment is to suggest that somebody who has some experience as a magistrate—we will not debate lay magistrates this afternoon—or as a tribunal member should be included on a panel. The words in the amendment are purely a legal device for defining suitable lay people. We are talking about somebody who has a bit of common sense and a knowledge of the procedure, but is not tied to the legal or medical professions. 
 There should normally be a reasonable number of people on a panel, and they should be able to take evidence from outside—later amendments deal with the ability of family members to make representations. The Minister may want to comment on the status of that evidence, the record keeping involved, and what will be required, even if things do take place in private. The purpose of the amendments is to make the process slightly broader based and better considered. 
 I do not feel strongly about the particular formulation that I have produced. I am not absolutely certain that we do need a lay involvement. However, I need the Minister to give me some assurances about the way in which things will work in practice, and how he, the Secretary of State, or the president of the gender recognition panel, will ensure that decisions are not skewed and that they are taken in a fully representative and proper way in order to meet the objectives that we share.

Evan Harris: There are several reasons why I take issue with some of what the hon. Gentleman said. The amendments are not necessary, and therefore should not be supported.
 Lay membership is not excluded under the Bill. Sorry, I meant to say that the number of people on a panel is not restricted to two under the Bill. Therefore one could have a third view, if one felt that having two views might leave a decision open to doubt.

Tim Boswell: To correct what I think was a slip of the tongue, will the hon. Gentleman confirm my understanding that laypersons would be excluded by paragraph 1 of schedule 1? For the benefit of the Committee, I want to be absolutely clear about that.

Evan Harris: Yes. Paragraph 1 of schedule 1 does mean that. The point that I was trying to make was that the number of medical practitioners is not restricted to two. The amendment tabled by the hon. Gentleman would require at least three, and that would increase the cost of the process. Since, as I understand it, the cost will be borne by the applicant, one has to have a good reason for forcing the minimum cost up by 50 per cent.—if one assumes that costs are proportionate to numbers—or perhaps somewhat less. I do not think that there is a good reason, because, as the hon. Gentleman himself says, gender recognition panels are not tribunals or panels of judgment. We understand his desire to include some aspect of the laity to provide a juror's view, but I do not necessarily think that it is appropriate. He suggests that panels should include people with experience as magistrates, but given the nature of the issue one should bear in mind concerns that the magistracy is not yet as representative of society as it might be, although I am sure that attempts are being made to make it so. That is a generalisation, but a fair generalisation if one considers the research into the attitudes and backgrounds of magistrates. I do not think that the amendment is a terrible proposal, but one must have a high threshold for increasing the cost and complexity of the panel.
 One other point that is worth making—I try to resist the temptation to make this point generally because I am medically qualified—relates to the view of the hon. Member for Daventry (Mr. Boswell) that the process must not be overly medicalised and that the whole person must be considered. I agree with him, but it would be better to say that medical members must not be too old-fashioned and consider the issue narrowly. Although I am sure that there is still some way to go, I hope that medics will not do that. Modern medical training involves exposure to societal and ethical issues to a much greater extent than it used to; arguably not as much as it needs to, but progress has certainly been made. I tend to bristle a little when I hear people say that a medical view automatically excludes the role of a person in society and the wider, holistic issues. I do not want to go on about that at length. 
 For those reasons, I am prepared to support the Government in resisting the amendments.

Angela Watkinson: My comments may not be entirely helpful to my hon. Friend the Member for Daventry, but they are in the interests of probing the amendments and their implications.
 I commented earlier that medical professionals have an enormous responsibility when deciding whether a person is suitable for gender reassignment treatment. As we discussed earlier, there are occasions when the treatment must be reversed. As someone with no medical qualifications, I find it a bit perplexing that if someone has a body gender that is the opposite of their mind gender—that is the layman's way of putting it—the decision is made to go to enormous lengths, with major surgery on occasions and drug treatment, to bring the body in line with the mind, rather than the 
 other way around. That is a medical decision that is a mystery to me. I wonder whether a layperson would be able to contribute meaningfully to that decision.

David Lammy: Mr. Taylor, I welcome you to the Chair this afternoon. It is a pleasure to serve as the Minister representing the Government under your chairmanship.
 Taking the point raised by the hon. Member for Upminster (Angela Watkinson), I emphasise that gender dysphoria and its treatment is outside the Bill, which is concerned with establishing that the gender dysphoria and its permanence or durability is evidenced appropriately. We are confident that the panel will be able to test the hon. Lady's concerns. It is important to emphasise that the medical member of the panel will ensure that the medical evidence—for example, the requirements of clause 3—is properly understood by the panel. It is appropriate that suitably qualified legal and medical members are appointed to this important judicial function, as we discussed this morning. The legal member will ensure due legal diligence and the medical member will ensure that the meaning and import of the sometimes complex medical terminology and analysis that may be a feature of the medical evidence is properly understood, which is, I think, what the hon. Lady alluded to. 
 The hon. Member for Daventry raised the issue of evidence. As no express standard of proof is laid down, he will understand from his general experience of tribunals that the decision will be made on the balance of probabilities. Evidence will come primarily from the applicant and we will talk later about the evidence that might come from family members. The panel may request further evidence and, importantly, under paragraph 6(6) of schedule 1, will be able to give reasons for the decisions that it has come to. That is important.

Tim Boswell: Will the panel be able to require the taking of evidence on oath? I am not necessarily canvassing that, but there may be circumstances in which it will wish to do so.

David Lammy: I would want to probe the circumstances further. It is right that if the panel is not sure about standards of proof it is able to ask for more evidence and be sure that its decisions are based on all the available evidence. We drafted the provisions to give the panel that wide and flexible power.
 At all times, panels will be making determinations based on legal and medical tests and we do not see what contribution lay members could make. The inclusion of lay members on other tribunals is usually to add insight from other areas of life, such as knowledge of local conditions or of a community. We believe that the expertise of a medical or legal panel member is sufficient to establish the existence of gender dysphoria for the purposes of the Bill and we have had some dialogue about that in Committee. One member can deal with fast-track or overseas applications, but at least two members—one legal and one medical—
 will deal with other applications. The president of the panel will be able to set up a bigger panel if he believes that the case merits and demands it. 
 I also want to emphasise the independence of the panels from the Secretary of State or anyone else. The panel members are the people who must adjudicate and judge the evidence; that is why the panels will have a legal chair. There will be no specialist medical member so that there will be no question of being asked to comment on one's own evidence or that of one's colleagues. We have set up the arrangements on that basis.

Tim Boswell: I am grateful to the Minister for that explanation. Something has come out explicitly that I was minded to ask him about implicitly. As I understand it, the provision in paragraph 6(1) that allows for a panel of one member will apply only to an overseas or fast-track application. Normally, the presumption is that there will be two members, and the president could ask for more than two.
 I understand the point made by the hon. Member for Oxford, West and Abingdon (Dr. Harris) that modern medicine is broadly social and contextual as well as purely professional. Perhaps not much value would be added by a lay person. That is a matter that we should probably leave to the good sense of the president of the tribunal. 
 I am thinking of the contribution from my hon. Friend the Member for Upminster because we have to keep working on and thinking about all the related subjects. Of course, the decision on diagnosis must be a strictly medical decision. The evidence then has to be evaluated, but I am sure that the Minister would encourage me to say that a good lawyer ought to be able to keep in play the public interest in the matter. I am content with his assurances, and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Tim Boswell: I beg to move amendment No. 26, in
schedule 1, page 15, line 29, after 'of', insert 'reasonable'.

David Taylor: With this it will be convenient to discuss the following:
 Amendment No. 9, in 
schedule 1, page 15, line 31, leave out paragraph (2).

Tim Boswell: The amendments are about money. Strangely enough, I suspect that I have retained a sense of grievance on this matter for 20 years. A tribunal on which I was empanelled did not pay. It paid expenses, but not remuneration. Bearing it in mind that the Minister has said that the members of the panel will be professional people who would have substantial opportunity costs if they were doing something other than engaging in the panel's work, the last thing that I want is for them not to be properly remunerated. We shall come to the issue about charges to the user of the panel—the applicant—at a later stage. It is a general presumption of administrative law that Ministers of the Crown are expected to act reasonably and
 therefore not to pay unreasonable remuneration. It might be helpful if the Minister explained the benchmarks that he will use.
 Amendment No. 9 is a classic probing amendment. It would be helpful if the Minister explained the sort of circumstances in which compensation could be paid. I imagine that it would be paid to someone who had done a great deal of work, or a person who had to drop out of a major case that would have been very remunerative in order to complete the work for the panel, if not pro bono in the finest sense of the word, perhaps as a loss leader, or for bare expenses or small remuneration. I do not know what the Minister has in mind, but it would be delightful to find out.

David Lammy: I cannot announce the salary package on offer to the panel members today but, as the hon. Member for Daventry would expect, those issues will be addressed in detail once the Bill has been enacted and the Department for Constitutional Affairs has begun appointing and establishing the gender recognition panels.
 We have not yet set the fee structure, but fees will be consistent with those paid to members of comparable tribunals and public bodies. There is therefore no question of the rates being anything other than reasonable. 
 Amendment No. 9 relates to paragraph 8(2), which contains a standard safeguard enabling judicial officers to receive compensation for loss of office. We believe that it would be wrong to remove it. The panels will be made up of legal and medical professionals, the majority of whom will sit as and when required while continuing to practise their various professions. However, it is possible that some will act in a salaried capacity, and it is a requirement of salaried officers and members of a tribunal to cease private practice on appointment and not to return to private practice on cessation of their judicial appointment. For those purposes, it is important that the Lord Chancellor has those powers. 
 It is also right to retain flexibility on numbers and workload. Owing to the absence of gender recognition in this country, the panel will initially have to deal with many applications, and we are making appropriate arrangements for that. For those reasons, I ask the hon. Gentleman to withdraw his amendments.

Tim Boswell: I am grateful to the Minister for his explanation. He may or may not know that one member of my family is a member of the Bar and in the Government legal service, so, although I am not canvassing for a job for her, the point arises about somebody's appointment as a salaried person. I realise from the Minister's slight eyebrow lifting that if she were a Government employee she could not possibly be on any panel while she so remained.
 The Minister's reply was perfectly satisfactory; I would have expected nothing other, and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Tim Boswell: I beg to move amendment No. 10, in
schedule 1, page 15, line 33, at end insert—
 '8A The President of Gender Recognition Panels shall make an annual report to Parliament, but this must not contain material likely to identify individual applicants or to prejudice the operation of section 22 of this Act.
 The intention of the amendment is self-evident. We have already had a useful discussion about how the gender recognition panels will operate, and as they involve the most private considerations for the individual it is proper that they meet in private. That supports the argument for not making them too large; the more they can act with discretion and confidentiality in principle, the better. 
 On the other hand, public interest is recognised in part by the obligation in paragraph 6(6) that the panel give reasons for its decision—that it has to have some basis in principle. No doubt the president of the panel will be anxious to see consistency of judgment and that approvals by one panel translate into work, where applicable, in other cases. He might also wish to express concern even to professionally empanelled members if that were going wrong. 
 The amendment allows for the fact that such matters are very private with a safeguard about individual confidentiality. As part of the overall transparency of the process, however, I am anxious to ensure that the president of the panel can report adequately and publicly. He should explain what is happening, such as the number of cases, the types of decision that are being taken and any pattern that is developing. I am not looking for trouble, but we all need a degree of scepticism and humility. I do not expect it, but a process might develop where the practice of panels diverged from what had been anticipated by all members of the Committee, wherever they stand on the matter. At least then the president would be able to engage on it and there could be public debate. The last thing that we want is the hawking around of individual and private decisions. That is not the purpose of the amendment. On the other hand, it is important, not least because of some of the fears that have been expressed by faith communities and others, that there is some public transparency once the legislation takes effect.

David Lammy: I agree in principle with the purpose of the amendment. It is important that I put a few things on the record that have not been mentioned previously. First, the gender recognition panels' work load and performance will be reported on annually. The panels will eventually form part of the tribunal service announced last year by my Department as a result of the wide-ranging review undertaken by Sir Andrew Leggatt. The hon. Gentleman may know that the Government hope to come forward shortly with plans for that service.

Tim Boswell: That is a useful assurance. Would the tribunal service deal with administrative matters? I emphasise that I am not referring to decision making but, for example, the setting up of hearings. If hon. Members were to receive representations from constituents who felt that a decision on their case was
 being held up, would they be able to make representations to the tribunal service that would, presumably, lead to some effect?

David Lammy: I am happy to give the hon. Gentleman that assurance and also to announce to the Committee that the Council on Tribunals has agreed to take a supervisory role in the administration of the panels. It will keep them under review and report annually to the Lord Chancellor, who shall lay the report before Parliament, and the Scottish Ministers, who shall lay the report before the Scottish Parliament, with such comments as they think fit. The council will also be able to investigate matters of concern referred to it by others. To achieve that role for it, I intend to table an amendment on Report that I hope will meet the favour of the House of Commons. I trust that my assurance that the performance of the panels will be reported on satisfies the hon. Gentleman.

Tim Boswell: Again, those are highly satisfactory and welcome assurances. We look forward to the Government amendment in due course. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Schedule 1 agreed to.

Clause 2 - Determination of applications

Tim Boswell: I beg to move amendment No. 3, in
clause 2, page 1, line 21, leave out 'or has had'.
 This is a different sort of amendment. It deals not with administrative matters but, if anything, medical matters. It is designed as a probing amendment. As such, I realise that it could be subject to misinterpretation. It is not an attempt to alter the underlying concept of the Bill, let alone to intrude on the position of individuals. Its purpose is to get clarification from the Minister. 
 I suppose that much depends on how the Minister, the Committee and, ultimately, the courts interpret the condition of gender dysphoria. We need not unpick the aetiology of the condition. The hon. Member for Birmingham, Selly Oak circulated some interesting and rather convincing material on the subject, which is a matter of considerable complexity. The condition can develop in utero, or shortly afterwards, and can take a long time to resolve. The Bill implies—this is where the amendment raises a query—that the applicant either 
''has or has had gender dysphoria''. 
The evidence presented with the condition is fairly simple to assess. Assessing a past condition is a little more difficult. 
 Things could go one of two ways. I think that I know the way that the Minister has in mind, but I need to clarify that. It could be that the condition involved a feeling that the individual had that has gone away and is no longer relevant, in which case I suppose that it would be reasonable to say, ''But why are they then turning round and making an application to the 
 gender recognition panel?'' I understand that. I presume that there would be no legal merit—to use a legalistic term—in that sort of application. Equally, it would be a case in which the applicant ''has had'', or could be argued to have had, gender dysphoria. 
 The other situation seems much more plausible. This is what I want the Minister to clarify, in particular. The applicant could have had gender dysphoria at some time. They could have sought treatment for it and had a surgical change, and could be living in the acquired gender for all purposes. That is the sort of person who, as the Minister rightly said, may come forward under the fast-track procedure that we will discuss later. In a sense, they did have gender dysphoria, and that may have been resolved. Equally—this is where I pause, because I want the matter to be clarified—as it is the general, if not universal, practice that individuals in that situation are required medically, or advised medically, to support their change with hormone treatment more or less indefinitely, I am not clear whether they still have gender dysphoria or have had it. If everybody still has gender dysphoria because they still require some form of treatment, why is it necessary to prescribe circumstances in which applicants may have had it, but no longer do so? This is not a serious issue of substance, but it is important that the Minister explains and clarifies the various circumstances and why the Bill is drafted as it is.

Evan Harris: Does the hon. Gentleman accept the following simple treatment of the matter? I am grateful to Press for Change for putting it to me. The treatment for gender dysphoria is gender reassignment. It is perfectly possible for people to have had gender dysphoria that has been treated and dealt with by reassignment. Legal recognition is a separate issue and follows on from that process.

Tim Boswell: The hon. Gentleman is probably right. It would be useful to have the Minister's reassurance. I seek only to ensure that we do not allow something through that we were not anticipating because the wording in the Bill is left unquestioned.

David Lammy: I endorse and confirm what has been helpfully said by the hon. Member for Oxford, West and Abingdon. I would add that the Government included the words ''or has had'' to cover the situation of a person who was diagnosed with gender dysphoria and has since continued through the process, as we expect people to do to live fully in their acquired gender. As the person is now living fully in the acquired gender, it may not be accurate to say that the person has gender dysphoria. The gender dysphoria has been dealt with. In order to ensure that such a person could apply for recognition, the words ''or has had'' were included.
 We had a debate this morning about the groups of people who may seek to apply for a gender recognition certificate. The hon. Member for Daventry will understand that a group of people who choose to go through the fast-track procedure will have moved 
 beyond the gender dysphoria that they had to a new life in an acquired gender, which they have had for many years. People undergoing treatment will seek to make applications. The Bill is designed to address the different contexts in which the panel will need carefully to examine the evidence. On that basis, I hope that the hon. Gentleman is able to withdraw the amendment.

Tim Boswell: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Tim Boswell: I beg to move amendment No. 4, in
clause 2, page 2, line 8, at end insert—
'(c) that the applicant's blood relatives and other persons with a major interest in his welfare have been afforded the opportunity to make representations to the Panel if they so wish.'.

David Taylor: With this it will be convenient to discuss the following:
 Amendment No. 38, in 
clause 3, page 3, line 1, after 'applicant', insert 
 'or members of the applicant's family'. 
Amendment No. 39, in 
clause 8, page 4, line 37, at end insert— 
 '( ) Subsection (2) will not affect the right of the applicant's family to offer evidence in accordance with section 3(6).'.

Tim Boswell: This is the last of a number of amendments that are designed to draw out from the Minister the way in which the provisions will work in practice, although this amendment is of greater substance. It is also of notably less elegant and accurate—even competent—drafting. I say that to the Committee because the amendment has got tacked on to the overseas provisions. I hope that we can take that as read, and I apologise for it in advance to the Minister. He will not need to point it out to me.
 The essential point of the amendment is to take up a debate from the other place, where the Minister, Lord Filkin, gave some helpful assurances about the ability of the gender recognition panel to consider representations from other members of the family. I need to make two qualifying points on that, and I am sure that my hon. Friend the Member for South-West Bedfordshire, whose amendment is technically rather better, will wish to make some comments as well. 
 At this stage of discussing the Bill, I feel that the representations concern what one might call socio-medical factors rather than economic factors. It would be quite improper to imagine a circumstance in which the gender recognition panel would have to hear representations about how much money an individual thought they might or might not lose. 
 I noticed some slightly overstated reservations that were published about the possibility that wills might be subverted by an application for gender recognition. Whether or not there could be—and a later provision in the Bill deals with this—the provisions concern members of the family being able to make their own representations. I wanted to make the point firmly that we are not considering the financial matters at this stage. The panel may want to ask the applicant if he or 
 she has made such a provision, but fundamentally the process should be a medical determination that leads to a legal judgment on the issue of a certificate. 
 The substantive point that I want to make, on which I think all Committee members agree, is that members of the family would normally know about such decisions. Indeed, they would have been a part of the decision over a period of time. However the amendment is drafted, I would not seek to make the panel officiously examine every last possibility that there might be somebody with an interest who has not been canvassed on the matter. One can imagine being unable to get hold of a child of the marriage who had gone away and been resident in a foreign country for a number of years. 
 On the other hand, the drafting was designed to include somebody who might, for example, be a carer, conceivably even a business partner, though that is unlikely. The essential point is that, although it is about the applicant, this is not a decision for the applicant alone. It also has a close and intimate effect on their family and their relationships. The family may have a positive contribution to make in terms of their experience of the applicant living in a new gender. They may want to give supporting evidence. It would be unfortunate—I understand from the framework of assurances given in another place that this is not Ministers' intention—to exclude people close to the applicant who would be able to get the original birth certificate.

Stephen Pound: Out of respect for the Minister perhaps I should not say this, but I will. Like many people in the Committee Room, I do not want to see lawyers become even wealthier. It seems that given the drafting of the amendment, an application could be contested by virtually anybody on the face of the earth. It seems that by including
''other persons with a major interest in his welfare'', 
the hon. Gentleman has drawn the amendment so extraordinarily broadly as to open the door wide to litigation. Would he not confine himself to the point that he made earlier about blood relatives?

Tim Boswell: The important point, and the Minister may want to speak to this, is that the panel must satisfy itself and opportunities must be afforded to members of it. I think that we all understand the importance of not seeking officiously to find the long-lost member of the family in Buenos Aires or wherever.

Stephen Pound: The Tichborne claimant.

Tim Boswell: Indeed. The hon. Gentleman has rightly muttered, ''The Tichborne claimant''. That is the last thing that we want, but we must not allow the fear of that situation to make it impossible for the gender recognition panel to make reasonable inquiries.

Evan Harris: I want to come back to a more fundamental problem with the hon. Gentleman's argument. He stated that we must accept that the matter is not just for the applicant but for his family as
 well. I cannot think—and I am trying to—of any personal right that one may seek to exercise under the Human Rights Act 1998 or the European convention on human rights that gives a right of veto, in the accessing of these rights, to a family member.
 Clearly there are sensitivities, but fundamentally the issue is about the autonomy of the individual. Regardless of whether other people may be hostile or supportive, it is fundamentally a matter for them and them alone to seek their rights under the Human Rights Act.

Tim Boswell: In a sense, the hon. Gentleman has exposed the dilemma. What he says is absolutely accurate. There is one applicant and one potential occasion for the issuing of a gender recognition certificate. That is personal to the applicant. That must be uncontentious. Indeed, the hon. Gentleman goes on to make the point, with perhaps greater certainty than I would be able to, that there is one fundamental issue of human rights that is specific to the applicant.
 What we seek to do is to make sure that no decisions are taken hastily or inappropriately and without some concern for the human rights of other family members to make representations. I am not proposing to say that they are necessarily overriding or could constitute a right of veto. However, I think that it is reasonable that people should be able to make representations. I sense that the hon. Member for Ogmore wishes to intervene.

Huw Irranca-Davies: I thank the hon. Gentleman for giving way, for the positive approach in which he has approached many of the amendments and for the probing way in which he has put them forward. Perhaps I address the issue from a slightly different angle. If the amendment were to be accepted, in what circumstances does the hon. Gentleman envisage a representation from, let us say, a family member having a material effect on the application? By the time that the application has been made and the individual has made an autonomous choice to go forward, I fail to see what purpose any additional representation by interested parties would have to the application.

Tim Boswell: There might be two possible concerns: first, if the individual's will to proceed with the application was uncertain or was in the view of another member of the family—a spouse or a close relative, including a child—deemed to be uncertain; secondly and more plausibly, in circumstances in which the behaviour of the applicant was not regarded as consistent with their application. Even that might be quite difficult to establish, but it might refer to whether they had really been living in the acquired gender over the requisite period.

Lynne Jones: What exactly does the amendment mean by
''have been afforded the opportunity to''?

Tim Boswell: I would have thought that it almost spoke for itself. It would mean that the panel, having received an application from an individual for the issue
 of a gender certificate, would ask, presumably in a standard format, ''Is there a spouse?'', which, as the Minister will tell the Committee, is a requirement. The panel would also ask, ''Are there children from the marriage, or previous children or other persons who might have an interest? Would you care to list them? Have they been told?''
 If the answer were no, the situation provided for in the amendment would not arise; but if the answer were yes, the panel could either accept the assurance of the applicant that family members had been consulted, or make separate and suitably conditioned inquiries of the persons there specified to ensure that they had had a chance to make representations. It means no more than that, and that is how I envisage it working. 
 I fully understand the delicacies about the modalities, but I think that we are saying that there should not and, if the amendment were not passed, probably would not be a situation in which an applicant, acting in a solipsistic manner, simply makes an application that the panel considers almost unawares to other members of the family. As I have mentioned, the scenario is unlikely, but were it to happen it would be unfortunate and it would discredit the process in the minds of the public.

Huw Irranca-Davies: I do not want to prolong the point, but from an informed lay person's perspective I am trying to envisage making an application and the panel seeing a submission from a family member, no matter how close or distant, who said, ''We disagree; we think that he is being too hasty. He hasn't considered it.'' I am not sure what that would add materially to my application or to the panel's deliberations, short of my saying to it, ''I have fully considered it. For at least two years previous to this, I have been in this situation.'' How does that move the process forward?

Tim Boswell: In most cases, a proper discussion with the family will be the norm and the desirable pattern. The Committee should acknowledge that there will have been a good deal of agonising in many cases, and I am sure that a family discussion will have taken place.
 If someone reading the Bill avails himself or herself of the right to apply for a gender recognition certificate, it is not unreasonable for the panel to want to have the widest possible corpus of evidence. It may be able to obtain that consensually, but there could be circumstances in which it would ask why there was no evidence from, for example, a son of the marriage. The applicant may say that they are not offering any evidence and the panel may ask why. It may then turn out that the son of the marriage would want to say, ''This is not really how it is at all.'' 
 I realise that the hon. Gentleman is genuinely puzzled, but there would normally be consensus, although some cases may be contentious, and it will then be for the panel to consider whether the evidence has any weight or is not relevant. That may also be relevant to the appeals procedure that is set out in a 
 later clause, which applies only on points of law, but if the panel simply went ahead in disregard of any evidence put forward to it by a related but not the same party, it might be in doubt about that. 
 The amendment would address, if not a reality, at least a nagging doubt that people may have that an application could be received, considered and determined by the panel absolutely without the knowledge and, dare I say, consent of the family, that material evidence had not been brought forward that might have influenced the decision and that the decision may have been too hasty or inappropriate.

Evan Harris: I shall address those points after the hon. Member for South-West Bedfordshire (Andrew Selous) has spoken, if I catch your eye, Mr. Taylor.
 On the suggestion that in almost all cases the family will have been told, it seems to me that, sadly, in some families there will be estrangement—I know someone in that position—not just because of the dysphoria, but because of issues leading up to that or flowing from that. The estranged family may not know that the person concerned is changing gender. That may be so common that to go out and specifically publicise to an unknowing family what is going on may be a breach of privacy that we are seeking to prevent in other parts of the Bill.

Tim Boswell: I shall make two points to the hon. Gentleman, and he must make his own points in a moment. These are serious issues and my attitude to most of them is tentative because they need to be considered carefully.
 First, in my judgment, the benefit of having family evidence will usually outweigh the possibility of malicious or untainted family evidence in a minority of cases. Secondly, the process will benefit from family involvement and it is not inherently unreasonable to extend the area of interest of the panel to family members. It is a difficult issue and I do not want the family to have a veto on decisions that should be taken for other reasons, but in all cases we should emphasise best practice, which is that the family should be involved or the panel should take an interest if the family has not been involved. 
 If the hon. Member for Oxford, West and Abingdon is right, the Government may have got into difficulty with their assurances in another place about the involvement of the family with the panel. I may be wrong about that, but it was referred to. I would be very grateful for the Minister's clarification in due course.

Andrew Selous: My amendments cover the same territory as that covered by my hon. Friend the Member for Daventry, but they relate to clauses 3 and 8. They are about the provision of evidence by families and their ability to appeal. It is important to make it clear that the decision would still rest with the tribunal, so there would be no question of families being able to block a decision. Amendment No. 38 would allow families to offer information or evidence under clause 3, and amendment No. 39 would allow them to offer
 evidence if there is an appeal under clause 8. The situation that the hon. Member for Oxford, West and Abingdon envisaged would not arise with my amendments, because families could take up a right. There would be no question of a bar.
 The amendments touch on large philosophical issues about our nature as human beings. It is true that we have a great deal of personal autonomy; that is clearly the case with the matters that we are discussing today. It is also true that we exist in relationship to one another. We are not purely atomised individuals but social beings who have, as part of the essence of our being, relationships with one another and, for many people, particularly with families. Therefore, it is important that families should be afforded an opportunity to have their views heard through the provision of evidence and through an ability to appeal. 
 The views of family members may differ. They may be supportive, in which case no point is at issue. In other instances, they may oppose the wish of the person to change their gender. Whatever the situation is, we must remember that the family knows the person very well and loves them. Their ability to contribute evidence and to be involved in any appeal process would be helpful and important. If they are denied those opportunities and made to feel excluded, what could be a difficult situation could be made much worse for all concerned.

Lynne Jones: Will the hon. Gentleman give at least one example of a way in which evidence provided by the family might contribute to the understanding of this medical condition? Essentially, the decision is based on a medical condition and on reports from medical practitioners.

Andrew Selous: The evidence of members of the immediate family—parents, brothers or sisters—who have known the person since childhood might contribute. I would have thought that they would be in a strong position to provide a great deal of evidence about the behaviour, wishes and aspirations of the person throughout their childhood and up to the point at which they decided that they wished to change gender. I cannot think of anyone more suitable or qualified to talk about the whole person than immediate family members. That is not assuming that they will be either for or against what the person wishes to do. Those are important points.
 The Minister was sympathetic in his speech on Second Reading to the wishes of the family to be able to contribute evidence and be involved in the appeals process. That was certainly my reading of his speech. I do not intend to continue on that point further because we covered that territory when debating the amendment of my hon. Friend the Member for Daventry. I would be grateful if the Minister would clarify the remarks that he made on Second Reading.

Huw Irranca-Davies: I want to tax the hon. Gentleman not on the principle behind the amendment, but on its practicalities. He is suggesting that we should solicit representations in some way, or approach family members to seek representations.
Andrew Selous indicated dissent.

Huw Irranca-Davies: I may be wrong. Nevertheless, how widely do we go within the family? Are we talking about immediate family, in-laws or bloodlines? I am not sure about the practicalities of what he suggests.

Andrew Selous: It is not my intention that the amendment would lead to the panel soliciting representations because that would take us down the dangerous course mentioned by the hon. Member for Oxford, West and Abingdon. If there is estrangement and the family are not there, it would not be right for them to say later on, ''We were never involved.'' The first amendment would create an opportunity—something that may happen—and it gives families who are in contact the ability to offer evidence.
 I would be happy in the first instance to restrict the provision to parents, spouses or partners, children and possibly grandchildren. I would be willing to take advice from the Minister's Department on whether the provisions should be more widely or narrowly drawn, but that would be a reasonable first involvement. It is an important point, to which I hope the Committee and the Minister feel sympathetic. If the process were a narrow one from which people who love, care for and are concerned for the people involved and have known them all their lives feel excluded, that would be unhelpful.

Huw Irranca-Davies: Does the hon. Gentleman accept that if immediate members of families are not to be solicited, it is for them to come forward? As he has just said, by necessity that means that they must be in contact with the individual. Under his amendment, there will be those in the family who may not be close, but may have a view. I am trying to examine a hole in the amendment. There may be people in the family who had something that they wanted to contribute, but because they are not being solicited—perhaps they are not in direct contact—they will not have the opportunity to put their views forward. Is that what the hon. Gentleman is seeking?

David Taylor: Order. That was a rather long intervention.

Andrew Selous: I am sorry to hear that the hon. Gentleman disagrees in principle with the amendments because I think that they would be extremely helpful. On the matters he raises, a distant cousin, for example, who knew the person who wished to change gender particularly well, would not be included under the definition I gave. I hope that we could leave that to the discretion of the panel. Certain people could be stipulated by regulation and the panel could exercise its discretion if someone had been particularly close to a cousin, for example, who knew them extremely well. In that case, it would be sensible to include such a person.

Evan Harris: I rise to request that the Minister clarify what he said on Second Reading regarding what his colleagues said in the House of Lords. I respect the point of view of the hon. Member for Daventry, who
 says that we should be tentative on all of the issues. I am sometimes conscious of the fact that I am a little didactic. He is always very tentative, and rightly so.
 This is an area about which I feel strongly because we have to consider the rights of families in respect of medical treatments and key decisions such as end-of-life decisions, for reasons that I will go on to explain. 
 There are two opportunities for a family to intervene. The first opportunity is at the time of the decision to treat and continue treatment—it is a process, not a single decision. Secondly, there is their right, as the hon. Members for Daventry and for South-West Bedfordshire would have it, to intervene at the point at which recognition is sought, when an application has been predicated on treatment. 
 I want to discuss both those points. It is difficult to have much sympathy with the principle or the practice of the amendments on either basis, and that is why I am concerned about what was said about the Minister having legislative sympathy. Of course, everyone recognises that people do not live in a vacuum and that they have connections with families, society, and the people for whom they love and care. I do not want my words to be taken to deny that. However, when we are considering the Bill we have to look at legalistic issues, rather than simply emotional ones. 
 I want to invoke a comparison with an issue that is perhaps even more important. I am talking about the right to refuse treatment, even if that results in loss of life. That is a decision for a patient with capacity, on their own. Doctors can act on the basis of a patient with capacity making that decision clear. They can take into account relatives' views on capacity—I will come to that, because clearly they have to make a judgment. However, if someone says, ''I don't want to have this operation'', relatives can say all that they like—they normally have good motives for what they say—but doctors cannot take that into account when making the decision because it is a question of the autonomy of the individual. With that sort of treatment, as with any other treatment, if someone is of sound mind—to put it legally—there is no role for relatives to veto treatment or force someone to undergo it. The same thing applies to the decision to treat for gender dysphoria. 
 Clearly, there are certain subjective judgments to be made by doctors. We are talking about judgments that are mainly objective, but in the end all objective judgments are affected by experience. A doctor may well take into account the views of the family in judging capacity, or, when the request for treatment is based on a history, they may take into account evidence of fact regarding that history, in case they were seeing someone who did not truly have the condition, but was seeking treatment factitiously—rare in these cases. There is also an important issue relating to evidence of compliance with treatment. 
 However, those are earlier-stage issues, and they are difficult at the best of times. It is not the job of a doctor, unless he or she has reason to suspect that there are issues about capacity, compliance or the facts relating 
 to the symptoms, to seek third-party opinions. Even the instances that I mentioned are questionable. Statute has not gone into the matter in great detail; if challenged, doctors have to defend decisions to treat and those made in relation to such issues under common law. That earlier stage is certainly where those issues might come in. 
 If there is a patient with capacity who has a medical report that takes into account the evidence and the doctor's view on compliance, it is hard to claim that someone should be able to argue at a later stage that there are reasons why the person who is being treated should not get recognition. If there are reasons why they should not get recognition, they should not really be undergoing treatment. That is the stage at which such issues might be brought to bear.

Tim Boswell: I am genuinely grateful to the hon. Gentleman for his useful clarification of the medical ethics, particularly in the circumstances leading up to treatment, which is not strictly in the purview of the Bill or the panel. At the same time, does he not agree that, in the deliberations of the panel, matters other than treatment are relevant? I am considering the rubrics at the beginning of the clause on the condition itself—whether it applied, and whether the tests of having lived in the acquired gender for two years and the intention to continue to live in that gender until death are met. In those circumstances, it would seem to me not unreasonable for the panel to have the benefit of the advice of the family and immediate concern.

Evan Harris: I accept that that is a strong point and that the presence of those words opens up the issue to the sort of amendments that we have been tabled. That is why I am interested to hear how the Minister defends putting such a stipulation beyond that provided by the fact that there has been treatment and it is ongoing. Under best medical practice, that presumes that those issues have been dealt with.
 Whether there is adequate compliance and—as far as one can tell—an agreement to comply with the treatment plan should be dealt with under the medical report on which the treatment is founded. We are talking about new applications; I do not think that there will be much doubt about people who are six years down the line of the fast-track procedure. The medical best practice guidelines need to ensure that people adequately comply and have the capacity to do so, and that there is a certainty, as far as there can be, about the symptoms that doctors may rely on. Those are always difficult areas, and the fact that there will later be recognition to meet the human rights needs of the individual does not change that. So, the arguments that we have had about the role of relatives in issues to do with treatment are not new but long-standing.

Huw Irranca-Davies: The hon. Gentleman's experience in the medical profession will be much greater than mine, which is negligible. Will he give us some idea of what happens when an individual makes their highly emotionally charged decisions? When are
 questions on the far-reaching repercussions on their lifestyle and their family, for example, put to them? I assume that they are asked at that early stage because such a holistic decision needs to be made.

Evan Harris: I do not want to extend the debate too much. I am not an expert in the area, but as I understand it, the decision to treat is based on the individual's full understanding of and insight into the decision's impact. Of course, many individuals present with that understanding, because they have been living with the condition for some time and see the treatment as a solution and not as potentially causing problems.
 The point that I was making was that, where there is some information to suggest that the patient does not have adequate capacity or compliance or, indeed, that the symptoms are not as the patient describes, things are difficult. 'Twas ever thus in medical decisions that a relative says that something is not true and a patient says that it is. Sometimes one can try to seek independent evidence, but it is difficult to rely on third-party testimony, particularly that which may be biased because of emotional links, and particularly given the sensitivities and moral reasons that many people cite to judge that. So, it is a difficult area of medical treatment. However, once a person reaches the stage of a panel, it is rather late for relatives' views, which may be based on good or bad reasons, to be given centre stage, as the amendments propose.

Andrew Selous: I want to be clear about what the hon. Gentleman is saying. Is he advocating that family members, howsoever defined, should provide evidence at the point when treatment is given? I wonder whether through him I could ask the Minister to respond to that point? Given the apparent concern about some of the fast-tracking, this is a very important area.

Evan Harris: I am not suggesting that such evidence should be a normal part of the medical process. A patient sees a doctor, and where that patient has capacity and is not a child, there is no reason why a third party should be involved. Sometimes there are issues of judgment and professionals with experience may well have concerns about capacity for compliance and the facts of the symptoms. I believe that that will be rare, but it is a matter for professional judgment.
 Decisions to treat must be defended on the basis of the contemporaneous medical record, investigations, full history-taking and examination, but I do not think that in this area of personal medical treatment or the other one that I used as an exemplar there is a role for families' direct right of access to the doctor-patient relationship. As I said, there will be occasional cases in which the doctor may seek consent of the patient, which is required, to obtain further information. If that consent is denied, the doctor can take that into account, because he cannot be forced by a patient to treat if he has such suspicions. However, those difficult areas are not for the Bill. We must therefore separate treatment issues from accessing human rights. 
 The Bill requires the panel to take a view on whether the person has lived in the acquired gender throughout the period, and I accept that that opens up the debate. I have not said that we should not debate the 
 amendments in the context of that requirement; nor do I seek to consider how we define the family. The hon. Members for Daventry and for South-West Bedfordshire have both conceded that those are complex areas and that we ought to debate the principle before considering the practice. I shall listen with interest to the Minister's description of the family's role in the judgment and, because I am more than happy to be tentative, I hope that he will accept that there is something in what I said about the autonomy of the person, both in seeking treatment and in the individual nature of their application for recognition of their human rights.

Angela Watkinson: I have listened carefully to the hon. Gentleman. I do not know how often it happens, but it occurs to me that some who wish to undergo the treatment may be married or may be women who have children. The lives of spouses and children would be affected profoundly by the course of treatment. When the person embarks on the treatment, their spouse may decide that, because they have been together for a long time, they can cope with such great change in their lives. Then, as the treatment progresses and time passes, they reach a point at which they decide that the situation is intolerable after all. Does the hon. Gentleman accept that there is a profound effect on the lives of family members whose spouse or parent is changing gender?

David Taylor: Order. That was a long intervention.

Evan Harris: The hon. Lady makes an important point, but the question is already difficult because there is no right for relatives to have access to such discussions unless they are directly affected themselves by other issues on which we are not touching—for example, if their lives are in danger because of a contagious disease. Clearly, if there is a family, the best practice for doctors is to ask whether relatives have been involved. If the patient says, ''No, I am doing this on my own and they are not to know anything about it'', that will be taken into account by the treating physician, but there is no right under the terms of confidentiality, except in prescribed circumstances, for doctors to go beyond that. However, they can refuse treatment if they feel that there is something wrong or the thing may not be sustainable. That is the way to deal with the matter. It is not appropriate to give some automatic right to third parties—not even to those with a strong emotional tie—to override medical confidentiality or the autonomy of the individual.

Tim Boswell: I am grateful to the hon. Gentleman for the way in which he framed his argument. It is absolutely clear to all members of the Committee that the best practice is the full involvement of members of the family, with the consent of the applicant. The hon. Gentleman has been making a case, based on his own experience, about treatment. Would he care to reflect on the fact that if one takes the logic of his position, which is that decisions around treatment are confidential to the individual and the doctor, it is at least questionable whether it is necessary to have the
 whole medico-legal procedure of the gender recognition panel thereafter? The cardinal decision appears to have been the one to treat in the first place.

Evan Harris: I think that I am heading that way, and that is why I will be interested to hear how the Minister wants to deal with the issue of ongoing treatment on the basis of presumed compliance with living in the gender and people wanting the application opened up to third parties. Third parties may have the best of intentions, but sometimes because of baggage, which we all have, they seek—I do not want to use the term too judgmentally—to sabotage the process. Where does the panel go? It will be interesting to hear what the Minister says, and at the risk of any further interventions, I will sit down.

David Lammy: Let me start by saying that one would expect the interests of family members to be taken into account by the transsexual person during the transition process. I also want to put matters into context. There are relatively few transsexual people in a family relationship and even fewer with children, but it is important that their interests are heard when such a fundamental change has such a significant effect on family life. That was where the hon. Members for Upminster and for South-West Bedfordshire were coming from.

Tim Boswell: I am sorry to interrupt at an early stage but I would like to unpack the phrase ''We would expect''. Is the difficulty with the amendment not about whether ''expect'' means the expectation of a course of events that will normally happen because the applicant will wish to involve their family, or is it expectation in the legal sense, in which there will be a presumption that involvement has taken place? Is that not the real difficulty with which the Minister and all of us are wrestling?

David Lammy: Well, let me explain how the provision will take shape. Often the impact is managed successfully and family members are at ease with the transition, however difficult it is. It is also important to emphasise that the standards of care used by medical professionals in the field reiterate the importance of family involvement in the process—to which the hon. Member for Oxford, West and Abingdon alluded, although he was firm about treatment. Section 9 of the Harry Benjamin standard of care during real-life experiences advises that professionals should discuss all the consequences of the change in gender for their family and work colleagues.
 The panel will wish to see evidence from family members to ensure that the criteria in the Bill are satisfied. I alluded to that on Second Reading as did the Minister in another place.

Andrew Selous: Will the Minister give way?

David Lammy: I wish to make some progress to extend that point. Clause 2(1)(b) requires that a person may not be issued with a gender recognition certificate unless the panel is satisfied that he or she has lived in
 the acquired gender for two years. If they have lived in that way, it will of course be known to family members and talked through with them. Therefore, one would expect that one of the most persuasive pieces of evidence of living in the acquired gender for two years that a person could submit is evidence from a family member.

Evan Harris: The Minister uses the term ''family'', and I question whether that is appropriate. In cases where, not surprisingly, there is estrangement, the family may know nothing about the transition. I understand that the panel needs to be satisfied and to obtain evidence from someone who knows the applicant, but, as in the case that I have mentioned, such evidence is likely to come from someone much better placed than the family, regardless of how they feel. I wonder why the word ''family'' is being used instead of the term ''a person with the ability to give evidence on that issue.''

David Lammy: In many cases, if the person concerned has had a spouse and children, it will be a family member who can provide the evidence. I also acknowledge that, as the hon. Gentleman suggested, there will be transsexual people who are estranged from their families, and the family may not be able to give the evidence. It is right for the panel to know of that estrangement and to inquire into how it arose. It is relevant to the gender dysphoria to know how long the applicant has lived in the acquired gender and the degree of permanence. It is also important that those circumstances are acknowledged and that people are open and honest about their relationships and how long they have been in that situation.
 In the context of this small area, there will be people with families who are able to go through the transition, and the families will be able to provide the evidence in support of the criterion of having lived in the acquired gender for two years, or of the permanency test. That is when family and friends can have big influence on whether the person really intends to live permanently in that gender—we had a long debate this morning about reversion. That involvement is via the two years, and also the permanency test.

Andrew Selous: The Minister said that the panel would wish to see evidence. In the context of my amendment No. 39, does he believe that the applicant's family should have the right to offer evidence?

David Lammy: In short, no. The panel will need to look at the medical condition of gender dysphoria; what the hon. Member for Oxford, West and Abingdon said was helpful in that regard. As for the permanency test and whether the transsexual person has lived in the acquired gender for two years and beyond, family, friends and people known to the transsexual person can play an important role. A transsexual person who is in a relationship would be expected to have disclosed that fact on the application, and the panel will, appropriately, listen to family members, but that cannot be a bar or a veto affecting
 the gender recognition certificate. It is a piece of evidence that it is appropriate for the panel to consider, but it cannot be a bar or a veto.

Tim Boswell: If a gender recognition panel became aware of evidence from a family member, which may have been tendered unsolicited and even unknown to the applicant, would it be under an obligation to consider that evidence? I am referring not to the quality of the evidence or the weight to be given to it, but to whether the panel would be expected to take notice of what had been sent to it by someone who might arguably be said to have an interest in the outcome?

David Lammy: Fundamentally, the Bill is about the right of a transsexual person to apply to have their acquired gender recognised by the appropriate authorities in this country, and the evidence of family members and friends is helpful in that regard. I would not want to tie the panel's hands or encourage third parties to feel that they could proffer evidence to the panel, or have a bar or veto on that decision, but a transsexual person who is in a family relationship should expect the family to have a say. The form will have sections that ask someone whether they are married, which touches on other issues that I am sure we shall go on to discuss.
 As regards the other two planks—of permanency and having lived in the acquired gender for two years and beyond—the panel, quite rightly, will examine what family members have to say. The concern about the rights of a spouse or children is appropriate and valid, and was raised substantially in another place. I say to concerned Members that there are other arms of the state that form a nexus in this case. It is not just a matter for the gender recognition panel, but for the relationship with family law, ancillary relief and other provisions that are available for family members and spouses if there are problems. Of course, we know that there are often no problems, and spouses and children accept the transition.

Evan Harris: The medical report will deal with whether the person has told the family, and the effect on the family. The panel needs to satisfy itself that the applicant has lived in the acquired gender and intends to continue to do so. Would the Minister agree that the assessment of third-party evidence in such a case is based not on relationship by birth but on the quality of the evidence? In other words, it is a question not of who gives the evidence, but of how well they know it. Evidence may come from family members, but it does not have to. If the Minister can agree with that, I shall agree with him.

David Lammy: I agree with that. My point is that the evidence must be relevant. The weight that the panel attaches to that evidence must stand alongside all the other pieces of evidence available to the panel. I have no doubt that the panel will primarily want to be sure that the diagnosis of gender dysphoria has been correct, so that it can go on to establish that that is the permanent state by means of the other tests that I have outlined.
 As I have made clear, the Bill provides scope for family members to provide evidence for individuals applying afresh for recognition in the UK. Obviously, that pertains to applicants making applications from abroad, which the hon. Member for Daventry alluded to in his opening remarks. It may be arguable that evidence from family members should be taken into account if the panel's task were to decide whether it was in the person's best interest to have the acquired gender recognised, but the panels are not involved in making quite so broad a judgment. They are not paternalists who are there to do what is best for an individual. They are there to consider whether applicants pass the tests for legal recognition in their acquired gender. 
 In any case, I find it hard to imagine how it might serve someone's best interests to be denied recognition in the UK when he or she already has recognition overseas. That recognition would have been granted according to criteria comparable to our own. I hope that I have explained the nature of the role of family members and their proximity to the process, and also made it clear that they can have no veto or bar on the process.

Tim Boswell: I thank the Minister for his response to a fascinating and difficult debate. I characterise my amendments and my attitude to that line of argument as tentative. The Minister's response was delicate, but I realise that it must be, and that he does not want to fetter the panels in making their decisions. The cardinal issues will be what can be heard in evidence, what is relevant, and the weight that can be given to it. It may be difficult for the Committee to decide that now. Alongside such legal issues is the need to involve the family, and the fact that it may wish to have some measure of ownership of a difficult process. That must be balanced. I shall reflect on what the Minister has told us and the other points that have been made in our debate. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Andrew Selous: I am concerned about the Minister's response. In particular, there seems to be confusion between the ability, or as I would prefer to put it, the right to give evidence, and a bar or veto—

David Taylor: Order. Is the hon. Member about to say that he wants to press his amendment to a Division?

Andrew Selous: No.
 Question proposed, That the clause stand part of the Bill.

Evan Harris: I see the difficulty of the hon. Member for South-West Bedfordshire: he wanted to respond to the Minister's comments, but the hon. Member for Daventry led on that group of amendments and was in charge of whether to withdraw or press his amendment. It is a question of order, and of who can intervene, but the hon. Member for South-West Bedfordshire may be able to catch your eye on clause stand part, Mr. Taylor, and make further points then.
 I want to make a separate point on clause stand part, and ask the Minister to expand on subsection (4), which defines ''approved country or territory''. He was invited earlier to do so earlier, and it will be relevant to clause 21. Can he explain how he envisages the concept of the ''approved country or territory'' being developed, how quickly he thinks a list will be made, what consultation he expects to have with affected parties and, beyond the affirmative process—I understand that the affirmative process will apply—what bodies of expertise he expects to consult before producing that list? Why cannot that approved list be given more status, so that people who have had their change of gender recognised by a country whose arrangements we approve do not have to go through the process again? 
 At the moment, the bizarre position is that some people from European countries who have had their change of gender recognised are able to access certain rights; indeed, the Department for Work and Pensions often recognises that, for example, they are married in their new gender. It seems to me that unless the Minister can use that approved country or territory provision more widely than he currently envisages, there will be some backward movement for some nationals from certain European countries. I hope that I have now explained the position satisfactorily, because I do not wish to hold up the Committee.

Tim Boswell: I shall respond first to the point made by the hon. Member for Oxford, West and Abingdon. It is in the common interest to get on with producing a list, and by implication, to be ready to revise and expand it as soon as possible to other countries that have approved gender recognition.
 I want to make one general point on the clause, to reinforce a point that I made during an intervention on the hon. Gentleman earlier. My belief is that it is wise to have a double lock on the system of gender recognition. The first lock—it is entirely proper that it should be so—is the medical judgment of the specialist concerned, who is prepared to accept a person for gender reassignment, possibly leading to surgery. That is clearly a medical judgment and should not be second-guessed by us, although it is appropriate that members of the family should be involved in that decision and able to tender evidence if it is relevant. I do not think that that is in contention. 
 Where I might be slightly at odds with the hon. Gentleman's point is that I sense that the Minister requires—I think that the logic of the Bill requires this; and I certainly require it—the additional assurance of the procedure involving the panel and a gender recognition certificate being awarded. That is not purely a medical matter; it is also a medico-legal matter. The Minister is nodding. It will involve, if not lay persons, as was debated earlier, at least lawyers, who will bring an ordered mind to the matter and will also in a sense stand in on behalf of the general public and ensure that doctors—I have no reason to argue 
 that doctors will not act in the best interests of all concerned and the truth—are given some check and balance. The Government have reached the right balance on an excruciatingly difficult matter. 
 I leave the Committee with the point that came up in extenso in our recent debate on the amendments and implicitly in relation to some other matters: the availability of the maximum possible relevant evidence and the way in which that is brought forward and assessed by the panel will be critical. Understandably but unusually, the hearings will be in private—if indeed there is a hearing and not merely written representations—and it is therefore incumbent on us to ensure that the decision is not rushed, that it is taken with the maximum possible information about the facts, and that anyone who has an appropriate contribution to make, which can be made confidentially, is able to make that as part of the deliberations. 
 I support the clause as it is, although the debates that we have had about the various amendments have been useful in clarifying it.

Andrew Selous: I asked the Minister earlier whether he would indicate the extent to which he believes that the family should have the right to be involved at the point of treatment. Perhaps he could write to members of the Committee about that. I raised the question earlier and I do not think that he has had a chance to deal with it specifically.
 The Minister seemed to imply that if the family were involved in giving evidence, there would automatically be a bar or veto on the process. That is not a fair representation of the points that I have made so far in the debate. 
 The route that the Minister has gone down will lead to more trauma and upset on the part of those closely involved—the family and close friends of those undergoing gender change—in that they will feel that they have been excluded and locked out from even giving their view on the process.

David Lammy: I say to the hon. Member for South-West Bedfordshire that when I talked about the standards of care that are generally used not only in this country but across much of the European and western world—the Harry Benjamin standards—I thought that I mentioned that they are about genuine engagement with the family, where there is one.
 On the point raised by the hon. Member for Oxford, West and Abingdon, I cannot add much to what I said this morning. We have begun researching the recognition systems that other countries have in place. There is a lot of information to gather and get through. We are in correspondence with various embassies and consular offices throughout the world as we gather that evidence. Should the Bill be enacted, we expect shortly thereafter to lay before each House an order containing the list of approved countries. As I suggested this morning, we have to be sure that those countries on the initial list have standards as rigorous as our own. It may be fair to say that countries that require surgery and permanence—we talked about 
 why we do not require surgery—might be on that initial approved list, but we must consider all the circumstances.

Tim Boswell: There is a degree of reciprocity that may be difficult in the case of countries that require surgery in relation to our nationals who go to those countries. I appreciate that we are not legislating for that circumstance at the moment, but will the Minister reflect on whether any rights will be attached to those persons—this may surface in other debates—if they have a gender recognition certificate in this country and are resident in countries where surgery would have been a requirement for the nationals of that country?

David Lammy: I do not want to get into matters of private international law to which we alluded, and the clear fact is that we are not yet at a stage where we can talk about parity, even across the European Union. That is the great difficulty, but I suspect that our attempts, and those in the rest of Europe and the world, will mean that we reach parity in due course.
 I hope that I have set out how the selection will take place. The Bill contains criteria for granting recognition in the acquired gender. To go on the list, a country will need criteria as rigorous as those in the Bill. We have had a good debate on clause 2 and I hope that we can make progress. 
 Question put and agreed to. 
 Clause 2 ordered to stand part of the Bill.

Clause 3 - Evidence

Evan Harris: I beg to move amendment No. 56, in
clause 3, page 2, leave out line 41.

David Taylor: With this it will be convenient to discuss the following:
 Amendment No. 47, in 
clause 4, page 3, line 11, leave out subsections (2), (3) and (4). 
Amendment No. 57, in 
clause 4, page 3, line 11, leave out 
 'unless the applicant is married'. 
Amendment No. 58, in 
clause 4, page 3, leave out lines 13 to 16. 
I remind Members that they should avoid allowing their contributions on these amendments straying into the area of pensions, which will be covered by later amendments.

Evan Harris: I certainly intend to do that. I note that unfortunately the hon. Member for Birmingham, Selly Oak is not in her place; she warned us in advance that she would not be able to remain after 4 o'clock. I notice also that the hon. Member for St. Helens, South (Mr. Woodward) is not here, which is also unfortunate because of the work he has done on the Joint Committee on Human Rights. Nevertheless, we shall do what we can, even in the absence of their expertise.
 The debate on this group of amendments will touch on the issue of marriage, and it is not my intention to go into the area of pensions. I shall stick closely to the 
 report of the Joint Committee on Human Rights during the last Session, when it commented on the draft Bill. 
 Amendment No. 56 is a paving amendment under clause 3, but it really applies to clause 4. The amendment in itself is not competent because it would not make all the subsequent amendments that would be necessary. I hope that the Minister will accept that. I do not intend to press the amendment to a Division, not least on that basis and for other reasons. The amendment represents the maximalist argument for the position taken by the Joint Committee in respect of marriage, and I shall quote from that Committee. Debates have taken place in the House of Lords, and we will not gain much by having a long debate in Committee, particularly given the pressing time due to the length of the previous debate. Therefore, I shall be brief. However, I shall explain a compromise arrangement that could be put to the Government. It is based on the date of the marriage—that is, whether it is a historic marriage or one entered into after the Bill is enacted. 
 In paragraph 81 of its 19th report of the 2002-03 Session, the Joint Committee said that the draft Bill 
''also has important implications for the parties to marriages who were respectively male and female at the time of the wedding but one of whom subsequently seeks to change his or her sex or gender as a result of gender dysphoria . . . A person who is validly married in his or her birth gender would be unable to obtain a final gender recognition certificate unless the marriage is first annulled or dissolved.'' 
That has been carried through to the Bill. 
 The report recognises, as I do, that the Bill amends the Matrimonial Causes Act 1973 to provide an easier way to dissolve a marriage in the event of someone suffering from gender dysphoria and seeking treatment to change gender; that is, the interim gender recognition certificate gives a fast-track approach to avoiding the marriage. 
 In paragraph 85, the Joint Committee says that when it initially examined the draft Bill it was 
''deeply concerned about the way that people in stable marriages, perhaps with dependant children and strong family ties, would be pushed into ending the marriage if one of the parties suffers from gender dysphoria and wants legal recognition of his or her acquired gender. A number of the people who sent us written evidence provided eloquent testimony to the heartache and hardship which this might cause. As well as the emotional costs, the ending of a marriage could affect people financially, by depriving a surviving partner of widow's benefits or of the benefit of a pension, or of a right to damages under the Fatal Accidents Acts. It was also pointed out that the approach gives relatively little weight to the value of maintaining family life and the sacredness of marriage vows.'' 
That is a dilemma for a Government who seek to provide for full recognition of human rights, even if that was done after being prodded if not pushed into it by the European Court, but who also talk about the value of maintaining family life and the sacredness of marriage vows.

Tim Boswell: I suspect that the hon. Gentleman is aware of a communication to some members of the Committee enclosing a legal opinion that suggests that certain married persons have been advised that they may have a case under the Human Rights Act 1998, in
 that the right to marriage and the right to lead one's own life under article 8 are not adequately covered by the Government's proposals. The opinion goes on to say that if the Government persist with their present policy, a judicial review would be sought at the earliest possible opportunity in order to expose the situation.

Evan Harris: I am sure that that is right. I have seen several legal opinions on different issues. Of course, judicial review is a hazard with which all Governments must contend. There is a legal argument as well as a moral one, and the Joint Committee took legal advice when it drew up its recommendations. I hope that the Minister will expand on that when he responds.
 I have heard directly from Ministers that the Government believe that it is justifiable under articles 8.2 and 12 to require transsexual people 
''to accept the ending of a male-female marriage as a condition for registration in the new gender''. 
That is a quote from the report, which quoted the Government. The report explained that that view is held 
''mainly because the Government does not wish to sanction the idea that there can be a valid marriage between two people of the same sex or gender. It may be reasonable to expect people contemplating gender reassignment to accept that a willingness to accept that a marriage between two people of the same sex is not legally acceptable.'' 
The Government are proposing to bring in civil partnerships legislation. There are two reasons why I will not go into that issue directly or accept it as an argument against the fundamental principle that we identified. First, it remains to be seen whether the civil partnerships legislation will provide the full rights that are available to married couples. Based on what we have seen, that is certainly a moot point. Secondly, it is difficult for us, considering this Bill and the injustice that it may cause, to accept promises of future legislation, particularly at this point in a Parliament and particularly given the difficulties that Governments always say that they have in getting legislation through. Indeed, the events of last night suggest, if nothing else, that that is an ever-present danger, even for a Government with a large majority. For those two reasons, I am not going to use the civil partnerships' argument to address the principle that we are raising. 
 The Joint Committee therefore recommended that the Government should 
''reconsider the requirement for a party to a subsisting marriage to end the marriage before obtaining a full gender recognition certificate.'' 
It goes on to say that the Government might be best placed to reconsider that when the civil partnerships legislation comes in. Indeed, a position that one might ask the Government to take is not to require the ending of marriages now, but to consider whether they have a stronger case when they bring in the civil partnerships legislation and seek to amend what will then be this Act, using a civil partnerships Bill. 
 I think that the Joint Committee makes a strong case. One could argue that the marriage contract would not be a same-sex marriage contract because, at the time that the contract was entered into, the parties to it were male and female. So, the Government could argue, if they felt that they were in a difficult position over sanctioning what they see as same-sex marriages, that they are not doing so, because, at the time that the contract was entered into, the parties were clearly male and female and there was not the issue of a transgendered person being one of the parties. On that basis, the Government will have to make a strong argument to convince me that they are right to pursue their present path in the face of the powerful report from the Joint Committee on Human Rights. 
 I think that, even at this late stage in their consideration, the Government should avail themselves of the moral and legal arguments that are available. They should change their view and say that they do not expect people who are married in good faith, under a valid contract, to have to divorce and face all the personal and financial implications that go with that in order to avail themselves of their separate right to recognition in their new gender under the Human Rights Act.

Andrew Selous: I too rise to voice my objection, through amendment No. 47, which I tabled, to the fact that the Bill will force a man and a woman who are married to divorce purely because one of them has undergone a gender change. I think that that is wrong. In essence, it comes down to the fact that someone's biological sex should take precedence over their adopted gender. There is no medical argument against the fact that one's birth-given biological sex remains the same. That, as far as I am concerned, should be the determinant for marriage, which is clearly the union of a man and a woman, as is stated on the wall of every register office in the country.
 My hon. Friend the Member for Daventry cited the case of the married couple who have written to every member of the Committee. They are extremely concerned at the prospect of being forced to divorce purely because one of them has adopted a different gender. Many people wish to avail themselves and stay committed to their marriage vows, and they do not wish to take on separate or different rights offered by the Government. I ask the Government to reconsider that point. On Second Reading, there was strong concern about the matter across the House. The hon. Member for City of York (Hugh Bayley), who is present, also expressed support for my point and I hope that the Minister will be able to give some ground when he comes to reply.

Richard Younger-Ross: I support the amendments tabled by my hon. Friend the Member for Oxford, West and Abingdon, partly because I come from a different perspective to his. I am a practising Christian and he is very secular or, I think the correct expression is, agnostic.

Evan Harris: Secular.

Richard Younger-Ross: There is some confused thinking about the Government's proposals. They have almost certainly been lobbied by several groups, some saying that we should not have the Bill because they do not believe in same-sex marriages or recognise that gender can be changed by an operation; and others that if one has had the operation, applied and been registered with a different gender, one cannot remain married because one would be in a same-sex marriage. Those views cannot be held at the same time; they are mutually incompatible.
 My hon. Friend said that when somebody has entered into a marriage under their original gender, the marriage should be maintained. It would be wrong for the state to force a couple in those circumstances to break what they have entered into—as they would say—in the eyes of the Lord. It is inappropriate suddenly to say that they will be different from what they were before. They have taken their vows and made their commitment.

Andrew Selous: Does the hon. Gentleman accept that at the other end of his argument, with which I agree, there is quite justified concern among people of faith that we will be entering into same-sex marriages if marriages are allowed to be solemnised between a biological man and a biological man or a biological woman and a biological woman? That is the other half of the argument that he has cogently advanced.

Richard Younger-Ross: From the logic of that perspective, I accept that it might be the case, but I am trying to argue that those who advance that argument cannot hold both positions at the same time. If one comes to the matter from a different perspective, one can hold that we can have ''same-sex marriages'' from the perspective of the Bill because it allows not same-sex marriages but different gender marriages. Once they have applied, the person is of a new gender and can marry. It is not an inconsistency of my standpoint or that of my hon. Friend to hold both arguments, saying that the Government are wrong with the principle of this clause but right with the generality of the Bill.

Tim Boswell: I begin with a couple of general comments. First, this is the best opportunity to debate the principles of the issues, and you have rightly warned us that we do not need to stray into the practical implications of pensions until later on, Mr. Taylor. Secondly, I am far from certain about the distinction between sex and gender. Amendments to later stages of the Bill will explore that, but it was clear from some of the earlier exchanges that the words tend to be used interchangeably. They can occasionally confuse the debate.
 I am sure that the Minister will have some reservations if I say to him that I rise to support his position. I think he is aware of that. Whatever else one may say of the Government's position, it is logical. If persons can change gender, they may marry a person of the opposite gender but they may not stay married to a person of the same gender as themselves, whatever the circumstances were in a previous period when they were married to that person. The logic of the 
 Government's position, although it is harsh, is certainly compelling in that the circumstances have changed. That has been recognised by the issuing of a gender recognition certificate.

Andrew Selous: Does my hon. Friend agree that the matter boils down to a question of priority that one has to give to sex, as opposed to gender? My argument is simple. Biological sex, which cannot be changed—I do not think that there is any dispute medically that that is the case—should take priority over adopted gender. If one holds my position, it is clearly wrong to break up what is, in my view, still a marriage between a man and a woman. That is why I tabled amendment No. 47.

Tim Boswell: It grieves me to say so, but I am not entirely at one with my hon. Friend. The logic of his position is impeccable: if there is a given sex that cannot be changed then there cannot be marriages between a person whose gender has subsequently been changed by law and a person of the original sex. Conversely, however, according to the logic of his position, it would never be possible for persons who have gone through a transgender arrangement to have the relationship that they seek, or may be carrying out, recognised.
 It was revealing to read some correspondence I saw from someone who is not a constituent of mine. She said that she lives with someone who was formerly her husband and is now her partner. She had implicitly accepted the change that had taken place. These are wide issues. I think that the Government are right, but I just modestly flagged up a marker for a new clause of my own that I hope will be discussed later on in relation to marriage between transsexual persons. The one area in which the Government have not quite pursued the logic is a situation where two persons are both transitive and might wish to stay married. If the Government are committed to marriage, it is not clear to me why it is necessary to break that relationship, albeit that both partners have changed gender. We shall debate that when we come to it. 
 There has been some slipperiness of language, and although it is an easy thing to say—I do not want to say it in a smug way—no individual is obliged to sever their marriage. What they may have to do is sever it as a condition for the issuing of a gender recognition certificate, but that is a matter of their application. It is not being imposed on them. In a sense, their rights to the enjoyment of marriage are not being taken away. I can see the hon. Member for Oxford, West and Abingdon wrinkling on that. He can make an intervention if he wishes. No one is denying that it is a huge dilemma—I do not wish to say that for a moment—but sometimes there is a suggestion that people are being forced out of their marriages.

Evan Harris: It is worth making the point once, because it will be a recurring theme, that people will be forced to make a choice between their marriage, which they hold dear and has consequences for their family and their emotional state, and their access to their right under the Human Rights Act and the European convention to recognition of their new gender. One could argue that that is a choice, but as it is a choice
 between two fundamentals, it is a forced choice, which will mean they have to give up something that they hold dear.

Tim Boswell: I concede the hon. Gentleman's point to the extent of saying that the choice is a highly invidious one. That is the dilemma with which the Government, among others, have been wrestling. It is the appropriate moment to say that it would be helpful if the Minister responded to the points made about legal opinions. He may not wish to at this stage, but I seek his assurance that the advice—this is a matter of some contention on other occasions—is unshakeable, and is not likely to break down in the face of the European convention on human rights.
 I take it as read that the dilemma can be tolerable only if the possibility of civil partnerships exists. One of my concerns is to ensure that the two Bills dovetail, and we shall have an opportunity to discuss that later. 
 Another argument, which is seductive, although I do not want to accept it, is that there is a special circumstance for pre-existing marriages. Even if that is the case—I understand that emotionally, it might be, and that circumstances were different 30 years ago—the principle of not permitting same-sex or same-gender marriage, however one describes it, is sound. To make a concession for past marriages but not for future marriages concluded on the same basis would be invidious. I presume that people marrying today do so in good faith on the assumption that they are of the gender in which they are marrying, but that circumstances may change in the future when they take a different gender and wish to apply for gender recognition. 
 We should not preclude that, any more than we should facilitate rewriting history in relation to past marriages. This is a tough problem and the Minister, probably inevitably, is being cast in the role of the villain. No one is suggesting that the dilemmas are not huge, nor that we should not support the people involved or try to find the most acceptable way through their practical problems as well as their emotional and personal problems. However, I find myself reluctantly coming down on the side of the Minister, because I think that the basic principle of one man and one woman in one marriage is sound, and is the only basis on which we can proceed.

David Lammy: Hon. Members who attended Second Reading or followed the debates in another place will know that these amendments address one of the most difficult issues in the Bill. When I came into this job and acquired this portfolio—hon. Members will know that Lord Filkin leads for this area within the Department—I too had to grapple with these great difficulties. I want to express my compassion and sympathy for those who find themselves having to make what must be, alongside the pursuit of acquiring a new gender, a very difficult, if not the most difficult, decision in their lievs. I pay tribute not just to the work of Lord Filkin, but to the Minister of State,
 Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton) who was the lead Minister in the Department before me, and is now a Minister in the Department of Health.
 Whether the existing marriage of a transsexual person should be allowed to continue after a change of gender is a difficult issue, and again, it is right to put the matter in context. We are discussing a very small number of marriages, but that does not to reduce the significance of the debate. It is a credit to Parliament that we can discuss such matters carefully, not just in this place but in another place. 
 The amendments would remove the interim gender recognition certificate from the Bill, and would allow the marriage of a transsexual person to continue after a change of gender. We must be clear about that: in law, it would be a same-sex marriage. I say to the hon. Member for South-West Bedfordshire that we are not arguing about whether the marriage is a same-sex marriage in the eyes of God, or about whether the couple are, biologically, of the same sex. None the less, many religious people accept that a person can change gender. I put on record my own position as a Christian. The preponderance of opinion in the medical community is that gender can change. Although marriage is an institution defined by law, the Bill provides a mechanism by which a person will, after going through a robust and credible process, acquire legal recognition as being of the acquired gender. 
 We need to be clear that if existing marriages were not required to end, the Bill would pave the way for the creation of a small category of same-sex marriages. Those are not permitted under UK law and the Government do not intend to change that.

Andrew Selous: The Minister is dealing with the points carefully and in a considered manner. A number of us seem to be outing ourselves as Christians this afternoon, and I join that category. I put to him the point that I put to my hon. Friend the Member for Daventry. To me, it is a simple one: that sex, not gender, should be given priority. I agree with the Minister that people can choose to adopt a different gender. That is not the point of the argument. The Minister said that he was trying to prevent same-sex marriage. I do not think that there is any biological or medical dispute about the fact that we are not talking about a change of biological sex. I challenge anyone on the Committee to come up with experts who dispute that. I put that challenge on Second Reading and nobody responded. I put it to the Minister that when he says that he is trying to prevent same-sex marriage, it appears that he is prioritising gender above sex. Can he respond to that specific point?

David Lammy: I can. I understand why the hon. Gentleman makes that point, but for my purposes it is, unfortunately, a semantic exercise. Many years ago, when people talked about transsexuals and gender re-alignment surgery, the colloquialism for it was ''sex change''. We could debate the language of gender and sex for some time, but I am not sure that that would get us where we need to be.
 My position is this: I believe that there are people—born both in this country and in other parts of the world—who are driven to believe that they are in the wrong body and want to acquire the right one and a new gender. Given that fact, and given that the Bill is about recognising that and giving those people rights, I think that once someone has acquired a new gender, in law that person, although previously a man, is now a woman—or, although previously a woman, is now a man. There are obviously discussions and conversations going on in Europe in terms of discrimination and other things in that connection. In law, that person must have the rights that go with that change of status, which means that in terms of same-sex relationships, this is a very difficult area.

Evan Harris: The point that the hon. Member for South-West Bedfordshire made was also made in the House of Lords. Will the Minister accept that it was soundly dealt with by Lord Turnberg and Lord Winston? They pointed out that one cannot define gender by chromosomes alone, because there are so many cases in which the chromosomes are not clear. Indeed, there is physical intersex, which creates difficulty.
Andrew Selous rose—

Evan Harris: The hon. Gentleman cannot intervene on me, as I intervened on the Minister.
 I do not believe that there is a tract in any religious book that goes into the matter in any detail. There certainly was not in anything that I was taught at Sunday school, or its equivalent.

David Lammy: I am grateful to the hon. Gentleman. Not being a medic myself, I did not want to use those arguments, which were well made in another place.

Andrew Selous: I want to return briefly to the point about Lord Winston. Some of us believe that he was wheeled into the Lords debate to shore up a shaky Government case. I repeat a point that I raised on Second Reading in the Commons. The Minister and any member of the Committee would have difficulty finding a large number of medical experts who can conclude categorically that such matters are entirely physiologically determined. I am not saying that there is no physiological element, but the condition is not entirely determined by physiology. I ask the Minister to respond to that point.

David Lammy: There is not much to be added to the debate in another place. It would certainly be wrong to say that Lord Winston was wheeled in. Many people recognise that he is a man of immense expertise. As he is one of the most pre-eminent medical Members in the other place, it is entirely appropriate that he should comment on this matter, as he does on other controversial issues such as stem cell research. I am sure that he made his comments on that basis.
 In deciding whether to seek legal recognition in the acquired gender, a person must take all the implications of that change into account, including the effect on an existing marriage.

Richard Younger-Ross: Will the Minister give way?

David Lammy: I will not give way, as I want to make some progress. We have had a lengthy debate on this matter.
 Should the transsexual person, having weighed the consequences, decide to press ahead with an application for gender recognition, the Bill provides a simple mechanism for dissolving a marriage. It leaves applicants with ultimate control of the process and the ability to plan their affairs. It avoids the possibility of a person having to end their marriage before discovering the results of their application for recognition in the acquired gender. In making that argument, I do not wish in any way to underestimate the heartache that will be experienced by couples who face that dilemma. There is no doubt that a relationship that survives a gender change by one party is a strong one, and that it involves a partnership bond that is worthy of respect. 
 The hon. Member for Oxford, West and Abingdon referred to our civil partnerships legislation. Its proximity to this Bill is important. We hope to come forward shortly with a Bill in progress. Transsexual people in this country will consider how all those things fit together, because the Bill will not require them to apply for the gender recognition certificate. As the hon. Member for Daventry suggested, it will require them to end their marriage, not their relationship; that is an important distinction. 
 Transsexual people will fall into one of three categories. Some who have lived together for many years and are now quite elderly may decide that the process is not for them and that they want to remain as they are. Others will be pleased to go through the process of ending their relationship and moving into the new framework that will be provided by the civil partnership arrangements, and some will not be affected, in that they will be able to remain in their relationship within the context of the Bill. So there will be categories of people who will see how the Bill affects them.

Evan Harris: Before the Minister moves on—

David Lammy: I know that we will debate time limits and the interim certificate. I am examining the issues around interim certificates that bear on the ability to allow those in existing marriages to obtain recognition but not move on to full recognition.

Evan Harris: I know that we are keen to make progress but I want the Minister to explain something that he said earlier. He said that British law does not allow same-sex marriages and that is why he will not change the law in this Bill to allow it. That is tautological, however, because a small group of what he considers to be same-sex marriages could be allowed by law if he accepted the thinking behind the amendment. Merely saying that British law does not allow same-sex marriage and that he will not therefore change the law to allow it is a circular argument, is it not?

David Lammy: Let me explain the context, because the hon. Gentleman referred to the matter in earlier remarks. The Government do not consider that a requirement that a marriage end breaches the rights of a spouse under the European convention on human rights. In the Goodwin case, the Court in Strasbourg recognised that in according recognition to transsexuals the Government right to specify the conditions in which a marriage will end is still there. The spouse's right under article 8, which is effectively the right to a private life, is engaged, but the requirement that a marriage end is proportionate to the need to afford recognition to the transsexual person. To preserve marriage as the union of a man and a woman is appropriate in that context.
 The hon. Gentleman also knows that the right to marry, to which he referred in article 12, is the right to marry someone of the opposite sex, not someone of the same gender as currently maintained. Although I accept that it is a very difficult area and extremely hard for those who find themselves having to make such considerations, it is the Government's firm view that we cannot allow a small category of same-sex marriages.

Richard Younger-Ross: As the Minister accepted earlier on the intervention of my hon. Friend the Member for Oxford, West and Abingdon, the definition of chromosomal changes is not clear. The Minister is saying that everything is cast iron, very clear and there are two sides to the argument—one is either on one side of the argument or the other. Life is not like that, however; life is far more complicated.
 In the consideration of such complications there is, if I can use the phrase, an innocent party. I cannot think of a better expression for the partner of the person who is transgender. The partner may be in a marriage, may be deeply religious and may not wish to see that marriage broken up by divorce, but they are effectively being forced to do so. That person also has rights, and they are not considered in the Government's proposal.

David Lammy: As I have said, I understand what the hon. Gentleman is getting at and I understand the great difficulties that the proposal poses to those marriages, but it is the Government's view that marriage is an institution for opposite sexes. We will be introducing legislation for civil partnerships for same-sex relationships, but in order to marry now, the transsexual person must be in an opposite sex relationship.

Evan Harris: I shall be brief because I notice that the hon. Member for City of York who has patiently sat through today hoping to reach his very important set of amendments is sitting on the Labour Benches.
 I am disappointed by what the Minister has said because my party's position on the matter is clear and was made so in the House of Lords when there was a Division on the matter. The question is one of a balance of harms. I have to ask the Minister: what harm will result from the creation of, even as he sees it, a very small number of same-sex marriages? We are talking about a limited number, not one that could 
 explode. Indeed, one could take a historical point of view and say that there will be a defined, finite number of marriages that he deems to be same-sex. Will the earth blow up? Will the sky fall in? Will the fabric of society be undermined? No, it will not. 
 We are talking about putting people through what the hon. Member for Daventry called a difficult dilemma—I accept that he does not support me all the way on this, but he does recognise, as does the Minister, that there will be a terrible dilemma for individuals—for the sake of legislative tidiness. I think that was the argument that the Minister used. He said that he could not countenance the creation of a small number of what he considers to be same-sex marriages because British law does not allow that. 
 I accept the Minister's argument that European jurisprudence does not require Britain to do what I am calling for it to do, and I accept the argument that he made in response to my intervention that there is a margin when it comes to national laws and that the Goodwin case did not find that what I am calling for was required. I am not necessarily claiming that this will be challenged under European law; I am just making a practical and principled point that the Government are not prevented from going down this path, and that they are deliberately choosing not to go down it for what I think are reasons of legislative tidiness.

David Lammy: I want to put on record that I do not think that I used the phrase legislative tidiness. The point is far more one of principle.

Evan Harris: I do not want to misquote the Minister or imply that he used the words that I used. However, I think that his point of principle was that British law does not permit same-sex marriage, and will not be changed to permit even a small number of people to fit into a category that he calls same-sex marriage. He considers that a point of principle. It is not demonstrably so. It is a position that the Government have taken to be tidy legislatively and to ensure that there is no group falling outside that rule—as the Minister puts it, that is a principle—and because they do not want to send out a message that might encourage people to believe that they support the creation of same-sex marriages in a wider set of circumstances. The Government are quite capable of conveying a message without victimising a small number of people who will be forced to choose between marriage and accessing their full human rights through gender recognition.
 I recognise that we will have an opportunity to come back to this matter and put it to a vote, in some form, at a later stage, and therefore I do not propose to put it to a vote now. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Richard Younger-Ross: I hope that the Minister will be able expand on the issue of evidence, particularly in the case of someone who starts living in their acquired gender while abroad, but moves to this country in the transitional period. What evidence would be accepted about when they had started their two-year period? What would be the case in terms of recognition of medical evidence from abroad? I am thinking in particular of cases in which the country is not one that we accept in relation to gender recognition. I hope that the Minister will explore that and explain his thinking, and the thinking of his Department.

David Lammy: As I explained earlier, we must be sure that countries on the approved list have standards as rigorous as our own. To that extent, we have to make a tough assessment of the list, which will enable the process. The hon. Gentleman will have heard the debate that I had with my hon. Friend the Member for Birmingham, Selly Oak about that matter. The assessment will enable the process of the applicant providing the evidence of their gender recognition to be a streamlined one—what some hon. Members refer to as a rubber stamp.
 In relation to countries that are not on the approved list, we require that the person make an application. The application will be a rigorous one that assesses the nature of the medical evidence, how that person is presenting, the length of time that that person has spent in acquiring the new gender, and the permanence of that. That means that there will be an investigation of the evidence that the panel would expect. 
 Indeed, it may well be that in those more complex and difficult matters, the panel president will seek to have a panel of three members to assist him or her in that process. I do not want to tie the president's hands in that regard, but I say to the hon. Gentleman that we have to be sure about that evidence. The length of time and scrutiny that we have had on the matter in this place, on the Joint Committee and in the other place means that we have to ensure that when the arrangements are put in place that we are rigorous in that assessment. 
 Question put and agreed to. 
 Clause 3 ordered to stand part of the Bill.

Clause 4 - Discrimination

Hugh Bayley: I beg to move amendment No. 29, in
clause 4, page 3, line 16, at end insert—
 '( ) Once an interim gender recognition certificate has been issued an application under section [Retained pension rights] may be made.'.

David Taylor: With this it will be convenient to discuss the following:
 Amendment No. 30, in 
clause 4, page 3, line 16, at end insert—
 '( ) If subsection 3 and Schedule 2 apply, and the couple intend to live together as partners following an annulment or dissolution of marriage Schedule [Retained benefits following issue of interim gender recognition certificate: living together as partners] shall apply.'. 
Amendment No. 32, in 
clause 25, page 11, line 29, at end insert— 
 '''live together as partners'' means— 
 (a) none of the provision of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply; 
 (b) the couple live together; 
 (c) the couple retain their responsibilities in relation to any existing dependants; and 
 (d) the couple maintain existing financial support for one another.'. 
Amendment No. 33, in 
clause 25, page 11, line 29, at end insert— 
 '( ) Two people may live together as partners irrespective of whether— 
 (a) they have been or remain for the time being legally married, or 
 (b) either of them has been issued with an interim gender recognition certificate or a gender recognition certificate.'. 
New clause 3—Retained pension rights— 
 '(1) The Secretary of State may by order make regulations to allow a couple following annulment or dissolution of marriage under the provisions of Schedule 2 of this Act to retain the pension rights and benefits from any private pension scheme of which either party was a pre-existing member at the time of the issue of an interim gender recognition certificate, provided that both parties show that they intend to live together as partners following the divorce and that none of the circumstances provided for sections 1,11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply. 
 (2) For the purposes of subsection (1) above a private pension means— 
 (a) an occupational pension scheme, 
 (b) a personal pension scheme, or 
 (c) a stakeholder pension scheme.'. 
New schedule 1—'Retained benefits following issue of interim gender recognition certificate: living together as partners— 
1 A person who is— 
 (a) married, and 
 (b) a member of a private pension scheme, and 
 (c) has been issued with an interim gender recognition certificate, 
 may apply to the court to order that all rights and benefits of the pension scheme should continue to apply following the annulment or dissolution of marriage if the person can satisfy the court that both parties to the existing marriage intend to live together as partners. 
 2 A person who is married to a person who— 
 (a) is a member of a private pension scheme, and 
 (b) has been issued with an interim gender recognition certificate, 
 may apply to the court to order that all rights and benefits of the pension scheme should continue to apply following the annulment or dissolution of marriage if the person can satisfy the court that both parties to the existing marriage intend to live together as partners. 
 3 In this Schedule— 
 ''private pension scheme'' has the same meaning as in section [Retained pension rights](2); 
 ''court'' means the court bearing the petition for divorce. 
 4 In this Act a couple ''live together as partners'' if— 
 (a) none of the provisions of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply; 
 (b) they intend to live together; and 
 (c) they intend to retain their responsibilities in relation to any existing dependants.
 5 Any award made under paragraphs 1 or 2 of this schedule shall be void if the circumstances set out in paragraph 4 cease to apply. 
 6 An appeal against any award made under paragraphs 1 or 2 of this schedule shall be heard by the court. 
 7 An appeal under paragraph 6 must show that the circumstances set out in paragraph 4 cease to apply. 
 8 Any person may show cause why an award under this schedule should not be made by reason of material facts not having been brought before the court; and in such a case the court may— 
 (a) notwithstanding anything in paragraphs 5 or 6 above, make the award; 
 (b) rescind the award; 
 (c) require further inquiry; or 
 (d) otherwise deal with the case as it thinks fit. 
 9 An application for an award under this schedule may only be made— 
 (a) after the issue of an interim gender recognition certificate; and 
 (b) before the issue of a gender recognition certificate.'.

Hugh Bayley: Members of the Committee who were present on Second Reading will know that I have strongly held opinions about the wisdom or otherwise of requiring transsexuals who wish to obtain a full gender recognition certificate to divorce if they happen to be married. I exercised some self-restraint during the last debate because the comments that I wish to make about that are best made in the context of the amendments that I have tabled on the pension entitlement of people in those circumstances.
 The Bill is a good one, but it is marred because insufficient attention has been given to the interests and the rights of those married to transsexual people. One of those rights is the right to married life. The Bill assumes that it will always be in the interests of a husband or wife of a transsexual person to divorce at the point that the transsexual person applies for a full gender recognition certificate. I am afraid to say that that is not the case at all. 
 Instances have been brought to the attention of the House on Second Reading and in this Committee today where it is neither in the interests of the spouse, nor is it the wish of the spouse, to go through divorce proceedings. The hon. Member for Daventry referred to one such case, and circulated it to Committee members, where the couple concerned issued a long and detailed legal statement that pinpoints the conflict between the human rights of a married transsexual person who seeks registration in their acquired gender and the human rights of that person's husband or wife to marriage, privacy and financial security in circumstances in which neither party wishes to dissolve the marriage. 
 A couple in my constituency are in just such circumstances. They have been married for 35 years and they wish to remain together. On Second Reading, I raised their requirements for a waiver, which we discussed in the previous clause, to allow such a couple to remain married. Like the hon. Member for Oxford, West and Abingdon, I regret the Government's response. I agree with the hon. Gentleman that there is no reason why the Government could not, in this one 
 instance, make an exception to the wise general rule against same-sex marriages, as the Governments of France and Italy did.

Tim Boswell: Will the hon. Gentleman note, by way of encouragement, that whereas there may be difficulties about hard principles, which we discussed in our debate on the preceding group of amendments, it does not rule out the support in principle of some hon. Members on the Opposition Benches for consideration of points of practice, difficulty and legitimate expectations that I suspect the hon. Gentleman is bringing forward?

Hugh Bayley: I am indeed encouraged by what the hon. Gentleman says and I hope I receive the support not just of Opposition Members but of Labour members of the Committee.
 For the Committee's benefit, I want to explore the problem from the point of view of my constituents who, as I said, have been married for 35 years. For the past 33 years, since their first child was born, the wife has not worked full time and has not earned a pension in her own right. Like many women, she stayed at home to bring up the children and relied on her husband to make pension provision for their mutual old age. Their pension provides benefits to 
''a legal spouse at the time of death or retirement''. 
So if the proposal goes through and her partner wishes to exercise his human rights as defined by the European court to recognition in his acquired gender, they will have to divorce, and if they do so she will lose her right to a pension in retirement. Both partners are at the end of their working life; she does not have any opportunity to make alternative provision for her retirement, and yet if her husband applies for recognition in his new gender, she will lose her security in retirement. 
 What is so wrong with the Bill is that the invidious choice whether to put gender recognition or the marriage first rests solely with the transsexual person. It cannot be right to pass a measure that affects both partners of a marriage equally but gives one less legal protection for their human rights: it gives the non-transsexual less protection for his or her human rights than the other party in the marriage. 
 I want the Minister and the Committee to know what the spouse of the transsexual in my constituency said. I shall read from her letter, deleting only the name of her partner, because they both wish for anonymity and privacy. The wife said that she has no intention of leaving her partner and does not want to get divorced. She said that she had been married for 35 years and is happy to remain so, even when her partner has surgery. She said that it would be unfair to make them divorce as it would cost them money and they want to remain married. She is dependent upon her partner for her pension and she wants to know what provision the Government intend to make for her. 
 It is perfectly reasonable for my constituent to want privacy but, if the Bill is passed and her husband seeks a full gender recognition certificate, she will lose her 
 privacy because her family circumstances will be dragged through the courts. We know what the media are likely to make of that. The Bill does not protect her human rights. I tabled my amendments because I believe that her rights must be protected, and I ask the Government to support my proposal. 
 The amendments and new schedule would protect the financial interests of both partners in a marriage if they want to stay together to retain and honour their financial responsibilities to one another after their marriage is dissolved for the purpose of obtaining a full gender recognition certificate. New clause 3 would permit the Secretary of State to make regulations to allow a couple in such circumstances to retain the pension rights and benefits that either party had in a private pension scheme at the time the interim gender recognition certificate is issued. I do not envisage that that will impose any burden on the pension provider, as issue of a full gender recognition certificate will not change the life expectancy of either party or their responsibility for dependents. 
 An alternative way of achieving the aim would be to put a similar provision in the Bill. New clause 3 would allow the Minister to make regulations, but the alternative in new schedule 1 would make similar provision in the Bill itself. The new schedule would give rights to either partner to the marriage. I stress the word ''either''. The Bill gives one partner, the transsexual, the right to trigger a decision, but the 
 other party does not have such a right. New schedule 1 would give an equal right to either partner to apply to a court to retain their joint pension entitlement following dissolution of their marriage, provided that they satisfy the court that both parties intend to live together as partners. The new schedule defines what is meant by living together. 
 The new schedule also provides that the pension arrangements made under it would become void if a couple subsequently stopped living together. It provides for either party or the pension provider to apply to a court if the circumstances change. 
 These are serious amendments. They are not intended simply to probe the Government's view, which I know. I seek to remedy a serious injustice.

Tim Boswell: I understand that the hon. Gentleman's amendments bear solely on private pension provision and have nothing to do with state benefits or taxpayer involvement. Is that the case?

Hugh Bayley: Yes, I can confirm that the amendments relate solely to private pension arrangements. I do not have a quarrel with the separate part of the Bill that relates to state pension arrangements.
 Debate adjourned.—[Ms Bridget Prentice.] 
Adjourned accordingly at twenty-four minutes past Five o'clock till Thursday 11 March at half-past Nine o'clock.